Castleberry v. Frost-Johnson Lumber Co.

• Decision Date: 28 April 1926
• Docket Number: (No. 617-4339.)
• Citation: 283 S.W. 141
• Parties: CASTLEBERRY v. FROST-JOHNSON LUMBER CO.
• Court: Texas Supreme Court

Page 141

283 S.W. 141

CASTLEBERRY v. FROST-JOHNSON LUMBER CO.

(No. 617-4339.)

Commission of Appeals of Texas, Section B.

April 28, 1926.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by J. S. Castleberry against the Frost-Johnson Lumber Company. Judgment for defendant was affirmed by the Court of Civil Appeals (268 S. W. 771), and plaintiff brings error. Affirmed.

Seale & Denman, of Nacogdoches, and A. D. Lipscomb, of Beaumont, for plaintiff in error.

Harry P. Lawther, of Dallas, amicus curiæ.

Baker, Botts, Parker & Garwood, of Houston, for defendant in error.

POWELL, P. J.

For a statement of the nature and result of this case, we quote from the opinion of the Court of Civil Appeals as follows:

"Appellee was a subscriber under our Workmen's Compensation Act. * * * Appellant was one of its employés, and, while engaged in the discharge of his duties to appellee, received painful and severe injuries in the course of his employment, resulting in the loss of his foot. In due course of administration he was awarded compensation. He instituted this suit against his employer on allegations of gross negligence to recover exemplary damages. The trial court sustained a general demurrer to his petition. As in our judgment the petition stated a cause of action at common law, it was not subject to a general demurrer on the insufficiency of its allegations. Therefore we pretermit a review of the petition and of appellee's counter propositions on its construction.

"This leaves in the case only one question: Does our Workmen's Compensation Act abrogate an injured employé's common-law action against his employer for exemplary damages sounding in gross negligence? Both parties assert that this is a question of first impression under our act. Appellant must look to the act of 1917 * * * for his recovery. Articles 5246 — 3, 5246 — 4, and 5246 — 7, are as follows:

"(3) `The employés of a subscriber shall have no right of action against their employer for damages for personal injuries, and the representatives and beneficiaries of deceased employés shall have no right of action against such subscribing employer for damages for injuries resulting in death, but such employés and their representatives and beneficiaries shall look for compensation solely to the association, as the same is hereinafter provided for; provided that all compensation allowed under the succeeding sections herein shall be exempt from garnishment, attachment, judgment and all other suits or claims, and no such right of action and no such compensation and no part thereof or of either shall be assignable, except as otherwise herein provided, and any attempt to assign the same shall be void.'

"(4) `An employé of a subscriber shall be held to have waived his right of action at common law or under any statute of this state to recover damages for injuries sustained in the course of his employment if he shall not have given his employer, at the time of his contract of hire, notice in writing that he claimed said right or if the contract of hire was made before the employer became a subscriber, if the employé shall not have given the said notice within five (5) days of notice of such subscription. An employé who has given notice to his employer that he claimed his right of action at common law or under any statute may thereafter waive such claim by notice in writing, which shall take effect five (5) days after its delivery to his employer or his agent: provided, further, that any employé of a subscriber who has not waived his right of action at common law or under any statute to recover damages for injury sustained in the course of his employment, as above provided in this section, shall, as well as his legal beneficiaries and representatives have his or their cause of action for such injuries as now exist by the common law and statutes of this state, which action shall be subject to all defenses under the common law and statutes of this state.'

"(7) `Nothing in this act shall be taken or held to prohibit the recovery of exemplary damages by the surviving husband, wife, heirs of his or her body, or such of them as there may be of any deceased employé whose death is occasioned by homicide from the willful act or omission or gross negligence of any person, firm or corporation from the employer of such employé at the time of the injury causing the death of the latter. Provided, that in any suit so brought for exemplary damages the trial shall be de novo, and no presumption shall exist that any award, ruling or finding of the Industrial Accident Board was correct; and in such suit brought by the employé or his legal heirs or representatives against such association or employer, such award, ruling or finding shall neither be pleaded nor introduced in evidence.'"

The Court of Civil Appeals then proceeds to determine this one question in a very able opinion by Associate Justice Walker. The court affirmed the judgment of the district court, and held that the right at common law of an injured employé to recover exemplary damages arising from gross negligence of his employer was by express legislation as well as necessary implication abrogated. See 268 S. W. 771. We think both of the lower courts have correctly so held.

In so far as the opinion of the Court of Civil Appeals treats this subject, we feel we can add nothing worth while. We dislike to merely repeat what that court says, so we will merely briefly allude to some of its language. The statute not only once, but twice, in slightly different language, expressly states that an employé shall have no right of action at common law for damages where he has accepted compensation under the act. Such an acceptance on his part is, by express provision of the statute, a waiver of such right. As stated by the Court of Civil Appeals, the word "damages," unless limited, as is not done here, covers exemplary as well as actual damages. The law dictionaries and higher courts so hold. And it is absolutely conclusive that the Legislature, in passing this act, used that word in its usual and broad sense. Otherwise there would have been absolutely no necessity for making any exception in favor of exemplary damages in case of the death of an employé. Counsel for plaintiff in error contended that the word "damages" had reference only to actual damages. If that be true, as already indicated, there was no necessity for inserting the exception just mentioned. It is conclusive, as we see it, that the Legislature knew what the word "damages" meant, and that the statute itself would not permit recovery of exemplary damages by any one unless it was so expressly provided in the same statute. And, having expressly provided for exemplary damages of one kind, it must be held under the rules of construction that other kinds were excluded. The Court of Civil Appeals quotes the Latin maxim which means that the mention of one is the exclusion of the other. And so it is. There is no escape from this, as we view it. We think the legislative intent is perfectly clear so far as aforesaid provisions are concerned.

As held by the Court of Civil Appeals, there was in the act of 1917 but one statement that could possibly cast any doubt upon this construction, and that is the only clause in the law urged by counsel for plaintiff in error here. That part of the act of 1917, being a part of article 5246 — 7 already hereinabove quoted, is as follows:

"And in such suit brought by the employé or his legal heirs or representatives against such association or employer, such award, ruling or finding shall neither be pleaded nor introduced in evidence."

We think the Court of Civil Appeals proceeds to correctly construe this last-quoted clause. We call attention to the fact that, since the Court of Civil Appeals wrote its opinion in this case, the Legislature of our state has itself construed this most troublesome, conflicting, and possibly meaningless language. The codifiers were appointed to iron out such provisions wherever found in our civil statutes and make them harmonize. Consequently, they rewrote article 5246 — 7 (now section 5 of article 8306 of the Revised Statutes of 1925) so as to read as follows:

"Sec. 5. Nothing in this law shall be taken or held to prohibit the recovery of exemplary damages by the surviving husband, wife, heirs of his or her body, or such of them as there may be of any deceased employé whose death is occasioned by homicide from the willful act or omission or gross negligence of any person, firm or corporation from the employer of such employé at the time of the injury causing the death of the latter. In any suit so brought for exemplary damages the trial shall be de novo, and no presumption shall exist that any award, ruling or finding of the Industrial Accident Board was correct. In any such suit, such award, ruling, or finding shall neither be pleaded nor offered in evidence."

As so drafted by the codifiers, it was enacted by the Legislature. Therefore, since September 1, 1925, the statute does not contain the only provision which forms the basis of the brief for plaintiff in error here. Consequently, it cannot be doubted that, under the present law, Castleberry's suit must fail. His cause of action was the first in Texas to reach an appellate court. As soon as it was observed by the codifiers that it was being contended that, because of certain language contained in the statute, an employé could recover exemplary damages, that language was eliminated. This is quite persuasive that such an intention had always been that of the lawmakers. Otherwise, the language, expressive of legislative policy, would not only have been retained, but rewritten so as to make it intelligible.

Since we think it clear that the Legislature intended to abrogate exemplary damages to an injured employé, we are really not concerned with the wisdom or possible injustice which may flow from such legislation. But we...